USA > California > History of California, Volume VI > Part 66
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570
MEXICAN LAND TITLES.
been appealed to the district court in 1856, was trans- ferred in 1864 to the United States circuit, and was confirmed in 1865.44 By an act of congress in 1866 the United States ceded the government title to the city ; the appeal was accordingly dismissed in the supreme court; and in 1867 the final decree of confirmation was given by the circuit court. The confirmation was for four square leagues bounded on three sides by the ordinary high-water mark as it was in 1846, excepting the military reservations and private claims confirmed; and the survey was made by Stratton in 1867-8. Ten years later a controversy was in pro- gress, it being claimed by different parties that the Stratton survey had not correctly located the high- water mark. The survey was rejected, a new one made in 1883, and the patent was finally issued in 1884; but a controversy about the survey was still in progress two years later.
In 1880, or twenty-nine years after the land act became a law, there were four claims still pending in the courts on a question of title; in the case of ten others, no survey had been made; 48 surveys had not been fully settled; 27 were in the hands of the general land-office, presumably ready for patent; and 527 had been patented in 1856-80. The rate of final settle- ment from year to year is shown in the annexed fig- ures.46 In the annals of this long litigation, which title with which that of the Van Ness holders must stand or fall. 9 Wallace, 315. A similar decision was rendered in a controversy between a Van Ness holder and a U. S. officer holding a military reservation, since pending the question between S. F. and the U. S. the govt could make reservations for public purposes. 6 Id. 363.
44 City of S. F. vs U. S., Opinion and Decrees, a pamphlet pub. at S. F. 1835. John W. Dwinelle was the city's attorney before the district and circuit courts, and his brief published in 4 ed. from '63 to '67, with in- crease of comments and appendices, forms his Colonial History of S. F., a stan- dard work, which not only treats exhaustively of the pueblo question, but in other respects justifies its title.
45 Stratton's Report of Span. and Mex. Grants in Cal., 1880, in Cal. Jour. Sen. and Assemb., 24th Sess., appen. The 4 cl. still in court were Las Ciene- guitas, Carrillo, 1. c., 328; S. Francisco lands, Sherreback, l. c., 795; S. José y Sur Chiquito, Castro, 1. c., 546; and S. Pedro, Chapman, 1. c., 512. It will be noticed that my figures of note 13, this chap., as based on the Hoffman list of 1862, are somewhat modified by this official report; 612 cl. were conf., 178 rejected, 19 discontinued, and 4 still pending in '80 of the total of 813.
571
HARVEST OF THE ROBBERS.
may be said to have lasted in its most oppressive phases about fifteen years, there is much interesting and important matter, particularly bearing on the squatter controversies, that cannot be presented here for lack of space; while other topics, notably details of the process by which Californian claimants were plundered by speculating lawyers, must be passed over as well for lack of accurate data, though the general results are well known, and illustrative cases might be found. An unfortunate accompaniment of the struggle was the occasional resort of ignorant and unsophisti- cated natives, under the guidance of ignorant or ras- cally advisers, to clumsy frauds in support of good titles, a plausible foundation being thus afforded for the sweeping accusations of their enemies, and for the wide-spread belief, not yet extinct among even intelli- gent men, that most of the Mexican claims were fraudulent.
Throughout the period of litigation the squatter influence was potent in a hundred ways, direct and indirect, though, as we have seen, it failed at the start in bringing about a general revolt against law, equity, and treaty obligations. The squatters settled on Mexican grants, fenced in springs, raised crops, and killed cattle, devoting their gains to the costs of legal warfare against the owners. For years they had a secret league, with the moral support of thousands who were not members; and instances of armed resist- ance to legal ejectment, involving sometimes loss of life, were by no means rare. In too many cases the squatter interest, masquerading in the name of the United States, was the real opponent to the confirma- tion of equitable titles; in some instances it is sup- posed to have influenced the appointment of law agents representing the government; and it virtually con- trolled legislatures, juries, and the policy of congress-
The yearly patents issued were as follows: '56, 1; '57, 12; '58, 27; '59, 27; '60, 29; '61, 15; '62, 19; '63, 15; '64, 6; '65, 36; '66, 71; '67, 24; '68, 14; '69, 14; '70, 18; '71, 35; '72, 40; '73, 29; '74, 17; '75, 14; '76, 19; '77, 13; '78, 5; '79, 17; '80, 10.
572
MEXICAN LAND TITLES.
men, so that the Californians had small chance for justice. In 1852, Senator Gwin, under this influence, had the assurance to introduce a bill, which happily did not pass, to give squatters a valid donation title to 80 acres on Mexican grants, charitably permitting the owner to select the same area elsewhere on public land. 46 By an act of the legislature in the same year, school warrants might be located on any land not yet confirmed to the claimant, and on such confirmation they might be moved elsewhere.47 And again, an act of 1856 provided that all lands should be deemed pub- lic till the legal title was shown to have passed to private parties; that possession should be prima facie evidence of a right to such possession; that title under patent should begin with the date of the patent, and the owner could claim nothing for the use of the land before such date; and that a successful plaintiff in an ejectment suit must pay for improvements and grow- ing crops or sell the land, the value in either case to be appraised by the jury! There were other oppress- ive features of this squatter law, but the act was the next year declared unconstitutional by the supreme court.48 This shows the spirit of legislation, which I do not attempt to follow in detail.
It should not be forgotten, however, that the set- tlers as well as the grant-owners had their real griev- ances; and that while they included a lawless and unprincipled element, many, perhaps most, of them acted in accordance with their honest convictions. They could buy no good Mexican title, they could not find what was surely government land on which to settle. Educated to look with suspicion on all that
46 Text of the bill in S. F. Alta, Dec. 12, '56. Gwin, in his Memoirs, MS., thinks this would have been an excellent measure!
47 Cal. Statutes, 1852, p. 41-3.
48 Cal. Stat., '56, p. 54; 7 Cal. 1. There were also wise congressional enactments, general and special, in favor of the settlers, and not against the grantees, providing that purchasers under Mex. title finally rejected should have the preference in purchasing from the U. S .; and that an ejected squatter might recover his land if not included in the final survey, though this, in cer- tain phases of the floating grants, was overruled by the courts. 14 U. S. Stut. at Large, 220; 33 Cal. 102; 9 Wallace, 299.
573
ATTORNEY-GENERAL'S REPORT.
was Mexican, regarding many league grants as un- American and therefore wrong, naturally imbibing the current feeling that most of the grants were fraudulent and would be finally rejected, advised by their lawyers to become squatters and trust to the future, what won- der that they came to regard themselves as victims rather than workers of iniquity! And moreover, in many instances the land sharks deliberately set up false claims in the name of native grant-owners, and extended their surveys over the honest possessions of settlers with a view only to the levying of blackmail; and by their crafty misinterpretations of court decrees, laws, and alleged threats to owners ignorant of the English language and American ways, they stirred up various causeless dissensions. The evils of the time, except so far as they sprang from common defects of human nature, should be attributed mainly, not to the squatters or to any other particular class, but to the fundamental error of the United States govern- ment, of which more presently.
In 1860 Attorney-general Black made a report to the president on the California claims, a report devoted mainly to denunciation of the native Californians as forgers and perjurers, and of Mexican officials as worse if possible; to exaggerated allusions to the "organized system of fabricating land titles carried on for a long time by Mexican officials in California," when the making of false grants, with the subornation of false witnesses to prove them, had become a trade and a business; and to extravagant self-praise for his fore- thought in sending E. M. Stanton to California in 1858, and for the skill with which the documentary results of that mission had been utilized to defeat in Washington the gigantic frauds that had passed or were likely to pass unchallenged through the lower tribunals.49 In reply, William Carey Jones wrote a
49 Black's Report of the Attorney-gen. on Cal. Land Claims, Wash., 1861, Svo, 14 p. B. notes an act of congress on May 18, '58, providing for crim- inal prosecution and punishment of any person prosecuting a Cal. land claim upon a false title.
574
MEXICAN LAND TITLES.
series of letters in which he severely criticised the attorney-general's statements and theories, exposing with skill and fairness some of Black's blunders and false pretensions.50
In the later years there have been many attempts before the courts and congress to reopen some of the cases where fraudulent claims are alleged-and some- times truthfully-to have been confirmed and patented. Such attempts have not been successful because, what- ever the merits of the cases, not only the right of the government to reverse the decisions of long ago, but the policy of reopening the doors of land litigation, has been questioned. In 1876 the United States attorney, aided by able counsel, brought a suit in equity to re- open two of the cases before the circuit court; and judges Field, Hoffman, and Sawyer in concurring adverse decisions, besides considering the strictly legal aspects of the matter, dwelt most forcibly on the manifold and manifest evils that must result if the work of the old and extinct tribunals could be unset- tled on allegations of fraud in transactions which these tribunals had investigated with special power and ad- vantages. It was implied that congress might prop- erly invest the courts with powers not now possessed to reexamine fraudulent cases of a certain nature; but it was held that the frauds now alleged were not of a kind to justify the court, even if it had the power, in opening the way to endless litigation and a new un- settling of the California titles. That this was a cor- rect view of the matter can hardly be questioned.51
50 Letters of William Carey Jones in Review of Att .- gen. Black's Report, S. F., 1860, 8vo, 31 p. Says J .: 'If the matter shall ever be strictly examined, it will be found that the various acts of congress in relation to the claims to land in Cal., and the way that those acts have been administered, have had the effect in a large degree to substantiate what is false and discredit what is true. Ten years ago it would have been as feasible for a lawyer who was instructed in the subject-matter to detect a simulated grant here, as for a cashier of a bank to detect a false note, or a chemist a false coin; and this fact I have constantly stated from 1849 upward to the chief authorities concerned.'
51 Mexican and Spanish Grants, decision of the court published in pam- phlet form, S. F., '76, Svo, 63 p. The claims involved were nos 421 and 96 of the l. c.
575
GOVERNMENT POLICY.
In conclusion, some general comment on the system adopted by the government and on its results is called for. All that can be truthfully said in commenda- tion-possibly somewhat more in certain phases-has been presented directly or indirectly in the preceding pages of this chapter. We have seen that congress, though led to adopt exaggerated and inaccurate views of Californian affairs, acted for the most part honestly in its efforts to avert great dangers believed to be im- minent in connection with fraudulent land grants; that senators were to a considerable extent justified in their feeling, not only that the supreme court would decide the claims equitably and justly, but that only the highest tribunals could be trusted with the dispo- sition of such gigantic interests as were understood to be at stake; that the act of 1851 was well enough adapted for the settlement of the claims that the government seems to have had chiefly in view; that a liberal and equitable interpretation of law and treaty obligations was enjoined in the act and supplementary instructions; that the commission and courts did their work faithfully, with a commendable subordination in most cases of legal technicalities to justice; and that the final decisions, once reached, were in the aggre- gate as near an approximation to the right as could be expected under any system of legal machinery. It may be said, moreover, that when once the system had been put in operation the courts could do almost nothing, the government very little, to prevent the evils that appeared; and also that no system under the circumstances could have produced results entirely satisfactory, or prevented oppressive and ruinous liti- gation.
All this, however, though it reads like approval, is, so far as the government is concerned, only a some- what overdrawn excuse for a system that in its appli- cation and practical results merits only condemnation. It was thoroughly bad in almost every respect. So uni- form and overwhelming is the testimony to this effect
576
MEXICAN LAND TITLES.
that citation of individual opinions is not required, Writers on subjects connected with Californian annals, journalists, judges of. the different courts, lawyers who took part in the long litigation, public officials and private citizens, successful speculators like im- povershed victims, squatters as well as grant-owners, residents and visitors, American pioneers no less than native Californians and Mexicans, all-as their testi- mony lies before me in print and manuscript-agree with remarkable unanimity that the practical work- ing of the law was oppressive and ruinous; and I heartily indorse the general disapproval. True, there is some difference of opinion as to the relative im- portance of the various resulting evils; some of the judges deem themselves under obligation to suggest that most of the evils were "perhaps unavoidable;" and a few writers holding the original system of Mex- ican grants responsible for all blame, the United States chiefly, for not having rejected all the claims.52
It was to the Californians owning lands under gen- uine and valid titles, seven eighths of all the claimants before the commission, that the great wrong was done. They were virtually robbed by the government that was bound to protect them. As a rule, they lost nearly all their possessions in the struggle before the success- ive tribunals to escape from real and imaginary dan- gers of total loss. The lawyers took immense fees in land and cattle, often for slight services or none at all. The United States promised full protection of all property rights, and in theory they admitted the obli- gation to confirm not only legal but inchoate equitable titles; practically, by the system adopted they declared that every title should be deemed invalid until the holder had defended it at his own expense through
52 I looked in Gwin's Memoirs, MS., expecting to find a defence of the act of 1851, and I found indeed a brief statement to the effect that the measure proved satisfactory, its wisdom being shown by the fact that under its work- ings land titles in Cal. were quieted in one third the time required in Louisiana and Texas; but space was precious and the champion of the squatters had only 30 or 40 pages to devote to long quotations from his speeches of '51 as quoted from the Cony. Globe!
577
EVIL EFFECTS OF THE SYSTEM.
from two to six fiery ordeals against a powerful oppo- nent who had no costs to pay and no real interest at stake. Not only did they adopt a system which permitted this oppression, but their agents took advan- tage of the powers granted, and in a majority of cases continued the contest when all proper motives had ceased to exist. It was in no sense the protection prom- ised by the treaty to finally confirm a title after a strug- gle of eight to twenty-five years when half or all the estate had passed from the possession of the original claimant ; it was simply confiscation, and that not in the real interests of the United States, or of American set- tlers, but of speculating land sharpers. Senator Ben- ton's denunciations of 1851 were justified by results ; the senate was duly warned, though paying no heed, respecting the effects of its measure, with specifications of how they were to be produced, and illustrative references to experience with Spanish land claims in other states. If senators believed, as they apparently did, that nine tenths of the Californian claims were fraudulent, there was still culpable negligence and in- justice in the failure to provide for a prompt and real confirmation of the remaining tenth.
The spoliation of the grant-holders was, however, but a small part of the injury done to Californian interests by the measure in question. The deplorable effects of unsettled land titles and ceaseless litigation, prolonged for over twenty years, would be apparent in advance to any thinker, and in California have been fully realized from actual observation and experience by men of all classes. In a sense there was no govern- ment land to be purchased; every occupant felt that his possession was threatened by squatters on the one hand or by grant-owners on the other; neither squat- ters nor grant-owners could sell, or dared to invest in extensive improvements; thus population was driven away, industry and development were stifled, and Cali- fornia was prevented for many years from utilizing her natural resources. We must also in this connection
HIST. CAL., VOL. VI. 37
578
MEXICAN LAND TITLES.
consider the loss of life and property caused by the land controversies; the general demoralization and spirit of lawlessness, resting to no small degree on the un- certainties of land tenure, which gave our state so bad a reputation; the race hostilities that were fomented; the opportunities offered for wide-spread rascality and illegitimate speculation; and all the train of evils, moral and economic, that sprang largely from this source, and for which the government may be held in greater or less degree responsible. And we should not fail to note that besides the direct evils following this unfortunate legislation, there was a complete fail- ure to effect the particular benefits in view. These benefits, as they existed in the imagination of the senate in 1851, were chiefly a diminution, or dividing- up, of the immense Californian estates, a corresponding providing of homes and small farms for American set- tlers, and the defeat of fraudulent claims. In no respect were these objects accomplished. Had the 700 and more genuine claims been promptly confirmed and patented, so that a good title could have been secured, large tracts of the state's best lands would naturally have been sold in small divisions to settlers at prices very low in the eyes of the latter, but high in the view of owners who had known no higher rate than $1,000 per league for the choicest ranchos. As it was, the estates passed for the most part into the hands of speculators who were shrewd enough and rich enough to keep them. Land monopoly in Cali- fornia is due less to the original extent of the Mexican grants than to the iniquitous methods adopted by our government; and as to the fraudulent claims it is be- lieved that the worst ones were concocted, or at least, mainly fortified with supports of forgery and perjury after the commission and courts were fairly at work, and after the concocters had learned by experience what supports were likely to prove most effective. Not all would even have been submitted at first to a proper test, and few would have escaped detection
579
COULD NOT HAVE BEEN WORSE.
under practical as compared with legal methods of investigation.
I am well aware that it is much easier, especially with experience as a guide after the harm has been done, to criticise the system than to devise another to take its place and remedy its defects. It is no part of my duty to draught the bill that should have been passed by congress; but if it had to be done, my diffi- culties would be vastly lessened by the fact that so far as can be learned from my investigations, and the suggestions of others, there would be little danger of devising a worse plan than the one adopted. But for the national disgrace involved it would have been better to disregard treaty obligations and reject all the claims; for then the grantees might have pre- empted a small tract adjoining their buildings, or have migrated to Mexico, or revolted and been promptly killed. As has often been remarked, it would have been infinitely better to promptly confirm all the claims, both valid and fraudulent. The first method proposed to congress in 1848-9, that of a com- mission to investigate and present a detailed report in 1851, might have had its advantages, if followed by the prompt confirmation en masse of all but suspicious and apparently unfounded claims. Fremont's bill, insomuch as it made the decision of each tribunal final as against the United States, was better than its successor. Benton's bill, in general accord with Jones' report, providing for an authorized record and survey, the government reserving the right to contest claims of certain classes, was founded on a just appreciation of the situation. Hittell says the Californians "were entitled to the confirmation of their titles, after an examination as brief and simple as the circumstances would permit, and with as little expense as possible. The government should have made a list of all ranchos, the possession of which was matter of com- mon notoriety, and mentioned in the archives; should have confirmed them summarily, then surveyed them
580
MEXICAN LAND TITLES.
and issued patents. The claims which were not men- tioned in the archives, or had not been reduced to possession, might properly have been subjected to judicial inquiry." 53 Crosby, a lawyer who took part in many of the land cases, recommended to Senator Gwin the adoption of a plan providing for a board of registration to record claims, take evidence, and turn over each case as soon as completed to the surveyor- general for prompt survey, disputed boundaries to be settled by arbitration, the survey to be final, and a patent to be issued after one year had been allowed for interested parties to present their claims or charges of fraud in the district court. 54 Henry George, the op- ponent of land monopoly, suggests that the United States might well have confirmed to the grant-holders a certain area around their improvements, "and com- pounded for the rest the grants called for by the payment of a certain sum per acre, turning it into the public domain." 55 R. C. Hopkins, keeper of the archives throughout the period of litigation, believes, like Jones, that neither the distinguishing between genuine and fraudulent claims, nor the fixing of the bounds of the former, would have presented any great difficulties to a practical man; and he thinks that the employment of such men, familiar with the people, customs, and language of the country-men like Spence, Hartnell, Stearns, or Pablo de la Guerra, for instance-in some capacity should have been a feature of the best plan.
53 Hittell's Hist. S. F., sec. 89; see also the same author's Resources of Cal., article in Hesperian, iv. 147-55; and many articles in the S. F. Alta and other papers. H. has always persistently and consistently denounced the land law as opposed to the true interests of Cal., and his services in this respect are gracefully acknowledged by Dr Royce, Squatter Riot at Sac., who with equal earnestness and more philosophy has taken similar views of the matter, which is treated by him more ably than by any other writer, not only in the article cited, but in his California. Did space permit I might give many and long quotations of different authors in this connection.
54 Crosby's Events in Cal., MS., 67-78. This writer gives a clear account of the whole matter, showing in clear light the evils resulting from the act of '51
55 George's Our Land and Land Policy, 14-17. This author gives a very fair view of the general subject, though dwelling particularly on the bogus grants and swindling operations.
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